Citation Nr: 1017152
Decision Date: 05/10/10 Archive Date: 05/26/10
DOCKET NO. 06-12 684 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in New
Orleans, Louisiana
THE ISSUES
1. Whether new and material evidence has been received to
reopen a claim of entitlement to service connection for
bilateral pes planus and, if so, whether the reopened claim
should be granted.
2. Whether new and material evidence has been received to
reopen a claim of entitlement to service connection for
osteotomy of the second and third metatarsal, healed, status
post exostectomy, hallux toes of the right foot (right foot
disorder).
3. Whether new and material evidence has been received to
reopen a claim of entitlement to service connection for
osteotomy of the second and third metatarsal, healed, status
post exostectomy, hallux toes of the left foot (left foot
disorder).
4. Whether new and material evidence has been received to
reopen a claim of entitlement to service connection for a
back disorder.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
D. J. Drucker, Counsel
INTRODUCTION
The matter of whether new and material evidence has been
received to reopen a claim as to whether there was clear and
unmistakable error (CUE) in a July 1975 rating decision that
denied entitlement to service connection for bilateral pes
planus and osteotomy of the second and third metatarsal,
healed, status post exostectomy, hallux toes of the right and
left feet has apparently been raised by the record (in a
March 2010 written statement from the Veteran's service
representative), but has not been adjudicated by the Agency
of Original Jurisdiction (AOJ). Therefore, the Board does
not have jurisdiction over it, and it is referred to the AOJ
for appropriate action.
The Veteran had active military service from February 1971 to
August 1973.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a July 2005 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in New Orleans,
Louisiana.
Regarding entitlement to service connection for right and
left foot and back disorders, this decision addresses only
whether the evidence submitted is new and material. Because
these claims are reopened, and development not yet complete,
the remainder of the appeal as to these matters is REMANDED
to the RO via the Appeals Management Center (AMC) in
Washington, D.C. Consistent with the instructions below, VA
will notify the Veteran of any further action that is
required on his part.
FINDINGS OF FACT
1. A May 2002 rating decision declined to reopen the issue
of entitlement to service connection for bilateral pes planus
on the basis that the evidence did not show that the Veteran
had a constitutional and developmental abnormality aggravated
by active service. The Veteran did not perfect an appeal.
2. The evidence associated with the claims file since the
May 2002 rating decision raises a reasonable possibility of
substantiating the claim of entitlement to service connection
for bilateral pes planus.
3. The May 2002 rating decision also declined to reopen the
issue of entitlement to service connection for right and left
foot disorders, on the basis that the evidence did not show
that he had a constitutional and developmental abnormality
aggravated by active service. The Veteran did not perfect an
appeal.
4. The evidence associated with the claims file since the
May 2002 rating decision raises a reasonable possibility of
substantiating the claims of entitlement to service
connection right and left foot disorders.
5. The May 2002 rating decision also declined to reopen the
issue of entitlement to service connection for a back
disorder, on the basis that there was no evidence that the
claimed disorder was incurred or aggravated by active
service. The Veteran did not perfect an appeal.
6. The evidence associated with the claims file since the
May 2002 rating decision raises a reasonable possibility of
substantiating the claim of entitlement to service connection
of a back disorder.
7. Giving the Veteran the benefit of the doubt, his
bilateral pes planus was incurred during active military
service.
CONCLUSIONS OF LAW
1. The May 2002 rating decision that declined to reopen the
claims of entitlement to service connection for bilateral pes
planus, right and left foot disorders, and a back disorder,
is final. 38 U.S.C.A. § 7105 (West 2002).
2. The evidence presented since the May 2002 RO decision is
new and material and the claims are reopened. 38 U.S.C.A. §
5108 (West 2002); 38 C.F.R. § 3.156 (2009).
3. Resolving doubt in the Veteran's favor, bilateral pes
planus was incurred or aggravated during active military
service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 &
Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duty to Notify and Assist
Under 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002
& Supp. 2009), VA has certain obligations to notify and
assist the appellant. Given that this decision reopens the
claims of entitlement to service connection for bilateral pes
planus, right and left foot disorders, and a back disorder;
grants the claim for service connection for bilateral pes
planus; and remands the remaining issues on appeal, an
exhaustive analysis of VA's attempt to comply with these
statutes is not in order.
In light of the Board's favorable decision regarding the
claim for service connection for bilateral pes planus, any
deficiency of the duty to notify or assist is rendered moot.
Information concerning effective dates and ratings for
bilateral pes planus will be provided by the RO. If
appellant then disagrees with any of those actions, he may
appeal those decisions
II. Factual Background and Legal Analysis
A. New and Material Evidence
1. Bilateral Pes Planus
A May 2002 rating decision declined to reopen the issue of
entitlement to service connection for bilateral pes planus
finding that there was no evidence that the Veteran's foot
condition was aggravated by active service. The Veteran did
not appeal. Hence, that decision is final. 38 U.S.C.A. §
7105.
A claim will be reopened if new and material evidence is
submitted. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). New
and material evidence can be neither cumulative nor redundant
of the evidence of record at the time of the last prior final
denial of the claim sought to be reopened, and must raise a
reasonable possibility of substantiating the claim. Id.
Evidence that is solely cumulative or repetitious in
character will not serve as a basis for reconsideration of a
previous decision. The decision in Hodge v. West, 155 F.3d.
1356 (Fed. Cir. 1998), stressed that under the regulation new
evidence could be material if that evidence provided "a more
complete picture of the circumstances surrounding the origin
of a Veteran 's injury or disability, even where it will not
eventually convince the Board to alter its ratings decision."
Id. at 1363.
For the purpose of establishing whether new and material
evidence has been submitted, the credibility of the evidence,
although not its weight, is to be presumed. Justus v.
Principi, 3 Vet. App. 510, 513 (1992).
An application to reopen the appellant's claim was received
in July 2004. The evidence added to the record since the May
2002 rating decision includes VA medical records, dated from
2003 to 2004; service department records; and written
statements from the Veteran in support of his claim. Amongst
these is the Veteran's March 2006 substantive appeal wherein
he asserts that he was accepted into the military in
"sound" condition and then, during basic training was
diagnosed with third degree flat feet. He further maintains
that military daily logs should reflect his visit to sick
call regarding this matter. Also, in December 2004, the
Veteran said he had not been to a hospital, seen a physician,
or even knew that he had a foot problem prior to starting
basic training.
Added to the record were VA medical records that include an
October 2003 entry wherein the Veteran complained of
bilateral foot pain and reported having foot surgery after
discharge. It was noted that he reported being on his feet
during basic training and was told that his inside (foot)
tissue was torn in areas where the arch should be due to
being flat footed. The clinical impression included plantar
fasciitis bilaterally, resolved.
The evidence added to the record since the May 2002 RO
decision is new, it tends to relate to an unestablished fact
necessary to substantiate the claim, and raises a reasonable
possibility of substantiating the claim. Since the previous
denial was premised, in part, on a finding that there was no
evidence that the Veteran aggravated a pre-existing disorder
during service, the VA medical records along with the
Veteran's written statement relate to an unestablished fact
necessary to substantiate the claim. Thus, new and material
evidence has been submitted. The issue of entitlement to
service connection for bilateral pes planus is reopened.
2. Right and Left Foot Disorders
The May 2003 rating decision also denied the claim of
entitlement to service connection for right and left foot
disorders on the basis that there was no evidence that the
Veteran's foot condition was aggravated by active service.
The Veteran was notified in writing of the RO's decision. He
did not perfect an appeal, and it became final.
Amongst the evidence submitted in support of the claim to
reopen are the VA medical records, including the October 2003
clinic record, wherein he reported leaving service in 1973
and undergoing foot surgery in 1975. The diagnosis included
bilateral metatarsalgia, present preoperatively and
persistent long after and forefoot surgery.
In the December 2004 signed statement, the Veteran said that,
prior to basic training, he never sought medical treatment
for a foot problem or even knew he had one. In March 2006,
he noted that he was accepted into the military in sound
condition.
The evidence added to the record since the May 2002 rating
decision is new, it tends to relate to an unestablished fact
necessary to substantiate the claim, and raises a reasonable
possibility of substantiating the claim. Since that denial
was premised, in part, on a finding that there was no
evidence that the Veteran had left and right foot disorders
that were aggravated by active service, the 2003 and 2004 VA
treatment records, reflecting a diagnosis of bilateral
metatarsalgia, and the Veteran's written statements, relates
to an unestablished fact necessary to substantiate the
claims. Thus, new and material evidence has been submitted.
The claims are reopened.
3. Back Disorder
The May 2002 rating decision also denied the claim of
entitlement to service connection for a back disorder on the
basis that there was no evidence that the claimed disorder
was incurred or aggravated in active service. The Veteran
was notified in writing of the RO's decision. He did not
perfect an appeal, and it became final.
Amongst the evidence submitted in support of the claim to
reopen is a September 2003 VA medical record indicating that
the Veteran was disabled, evidently due to his lower back in
1983, and treated for lumbago in 1986. The October 2003 VA
medical record that includes an impression of back pain with
overlay onto foot problems.
The evidence added to the record since the May 2002 rating
decision is new, it tends to relate to an unestablished fact
necessary to substantiate the claim, and raises a reasonable
possibility of substantiating the claim. Since that denial
was premised, in part, on a finding that there was no
evidence that the Veteran had a post service chronic residual
disability related to service, the 2003 VA medical records
relate to an unestablished fact necessary to substantiate the
claim. Thus, new and material evidence has been submitted.
The claim is reopened.
Adjudication of the claims does not end with a finding that
new and material evidence has been submitted, nor is a grant
of service connection assured. Once a claim is reopened, the
Veterans Claims Assistance Act of 2000 provides that the
Secretary shall make reasonable efforts to assist a claimant
in obtaining evidence necessary to substantiate the claimant'
s claim for benefits, unless no reasonable possibility exists
that such assistance would aid in substantiating the claim.
See 38 U.S.C.A. § 5103A. As noted below, the Board is
requesting additional development with respect to the
underlying claims for service connection for right and left
foot disorders, and a low back disorder, and will issue a
final decision once that development is complete, if the case
is ultimately returned to the Board.
B. Service Connection for Bilateral Pes Panus
Under 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303, a veteran is
entitled to disability compensation for disability resulting
from personal injury or disease incurred in or aggravated by
active military service.
At the time of the service entrance examination, every
veteran shall be taken to have been in sound condition when
examined, accepted, and enrolled for service, except as to
defects, infirmities, or disorders noted at the time of
examination, acceptance, and enrollment, or where clear and
unmistakable evidence demonstrates that the injury or disease
existed before acceptance and enrollment and was not
aggravated by such service. 38 U.S.C.A. § 1111 (West 2002).
Only such conditions as are recorded in examination reports
are considered as "noted." 38 C.F.R. § 3.304(b) (2009).
The United States Court of Appeals, Federal Circuit, has held
that "[l]ay evidence can be competent and sufficient to
establish a diagnosis of a condition when (1) a layperson is
competent to identify the medical condition, (2) the
layperson is reporting a contemporaneous medical diagnosis,
or (3) lay testimony describing symptoms at the time supports
a later diagnosis by a medical professional." Jandreau v.
Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also
Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006)
("[T]he Board cannot determine that lay evidence lacks
credibility merely because it is unaccompanied by
contemporaneous medical evidence").
In a claim for service connection, the ultimate credibility
or weight to be accorded evidence must be determined as a
question of fact. The Board determines whether (1) the
weight of the evidence supports the claim, or (2) the weight
of the "positive" evidence in favor of the claim is in
relative balance with the weight of the "negative" evidence
against the claim: the appellant prevails in either event.
However, if the weight of the evidence is against the
appellant's claim, the claim must be denied. 38 U.S.C.A. §
5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App.
49 (1990).
On a report of medical history completed in February 1971,
when he was examined for enlistment into service, the Veteran
checked yes to having foot trouble, and foot arthritis
appears to have been noted by the examiner (writing is
unclear). However, when examined at that time, neither
bilateral pes planus nor another foot disorder was noted, and
the Veteran was found qualified for active service.
Clinical records indicate that in April and May 1971, the
Veteran complained of bilateral foot pain and was evaluated
by podiatrists. In April 1971, it was noted that that arch
supports were not helpful. In May 1971, a past history of
foot problems with no past medical treatment was reported. A
progression of foot pain since the Veteran was at Fort Polk
was noted and it was also noted that arch supports were not
helpful. Objectively, he had bilateral pes planus on weight
bearing with plantar callous formation and pronation; cock-up
toes and some recovery of arch off weight bearing. Results
of x-rays of his feet taken at the time were normal. The
clinical impression was plantar arch strain in both feet.
In March 1972, the Veteran was evaluated again by a
podiatrist for complaints of poor arches and pain on long
standing. Pes valgo planus, flexible, moderate and severe,
was noted and that previous supports were unsuitable. Custom
molded inlays were prescribed.
When examined for separation from service in August 1973, a
foot disorder was not noted.
Post service, private hospital records indicate that, when
examined in May 1975, prior to prospective toe surgery, it
was noted that the Veteran's transverse arches were broken
and he had a very big callus under both feet with third
degree flat feet.
A July 1997 VA examination report regarding the Veteran's
feet reflects his history of developing foot pain during
basic training for which he was seen in a hospital, given
arch supports, and told he had flat feet. The pertinent
diagnosis was pes planus.
Resolving all reasonable doubt in favor of the Veteran, the
Board finds that the evidence supports a finding that
bilateral pes planus was incurred during active service and
service connection is warranted. The service treatment
records clearly document that, when examined for enlistment,
bilateral pes planus was not noted and the service treatment
records further document the Veteran's treatment for
bilateral pes planus in service. The Veteran has credibly
and repeatedly stated in writing that he has had chronic foot
pain since that basic training. Given the clear evidence of
treatment in service, the private treatment record dated less
than two years after discharge, showing third degree flat
feet, and the 1997 VA examination report that diagnosed pes
planus, the Board is of the opinion that the Veteran's
bilateral pes planus cannot be dissociated from his active
military service. There is no evidence against the claim.
As such, the Board finds that the evidence supports the claim
and service connection is granted.
ORDER
New and material evidence having been received, the claims of
entitlement to service connection for bilateral pes planus,
right and left foot disorders, and a back disorder, are
reopened.
Entitlement to service connection for bilateral pes planus is
granted.
REMAND
The Veteran seeks also service connection for his left and
right foot disorders, and a back disorder, which he has
variously attributed to his (now) service-connected bilateral
pes planus (see Veteran's July 1975, July 1977 and April 2002
written statements). He has repeatedly argued that he never
experienced foot problems until he entered service and then,
shortly after discharge, underwent toe surgery.
Private medical records indicate that, in April and May 1975,
the Veteran was hospitalized for toe surgery. Records
indicate that he complained of pain in the bottom of both
feet with callus formation, reported having trouble for
"several years," and also had "pains in the back." He was
in the Armed Forces and at that time complained of foot and
back pain and was found to have third degree flat feet.
Shoes with special arches were made for him in service but
none provided much relief and he complained since. The
diagnosis at that time was fallen transverse metatarsal arch
with callus formation and pain in the Veteran's back that was
probably associated with the difficulty he had in walking.
The Veteran was referred for osteotomy of the toes of his
right and left feet that was performed at that time.
A July 1997 VA general medical examination report reflects
that the Veteran reportedly sustained a work-related low back
injury in 1979, reinjured his back in 1985, and underwent
back surgery in 1989. Diagnoses included degenerative joint
disease and disc disease of the lumbosacral spine.
During the July 1997 VA examination for his feet, the Veteran
reported that one year after discharge he was unable to stand
for a long time as a fast food restaurant worker and
underwent foot evaluation that led to his left and right toe
osteotomies. Diagnoses included pes planus, bilateral foot
deformity, status post osteotomy of the first, second, and
third toes, and bilateral calluses.
The October 2003 VA medical record diagnosed bilateral
metatarsalgia, present preoperatively and persistent long
after, forefoot surgery, plantar fasciitis, bilaterally,
resolved, and back pain with overlay onto foot problems. An
April 2004 VA medical record includes a clinical impression
of acute lumbosacral strain with neuritis and osteoarthritis
of the lumbosacral spine.
Secondary service connection may be granted for a disability
that is proximately due to, or the result of, a service-
connected disease or injury. 38 C.F.R. § 3.310(a) (2009).
To establish service connection for a disability on a
secondary basis, there must be evidence sufficent to show
that a current disability exists and that the current
disability was either caused by or aggravated by a service-
connected disability. See Allen v. Brown, 7 Vet. App. 439,
448 (2006). Additionally, when aggravation of a nonservice-
connected disability is proximately due to or the result of a
service-connected disorder, such disability shall be
compensated for the degree of disability (but only that
degree) over and above the degree of disability existing
prior to the aggravation. Id.; see also 38 C.F.R. § 3.310(b)
(2009).
Here, the Board is of the opinion that the Veteran should be
afforded a VA examination to determine whether he has right
and left foot disorders or a back disorder due to service or
that was aggravated by the service-connected bilateral pes
planus, or is otherwise related to this pathology. See
Allen, supra.
Accordingly, the case is REMANDED for the following action:
1. Contact the Veteran in writing and
request that he provide specific
information regarding medical providers
for his 1989 back surgery and any
subsequent treatment (e.g., hospital,
surgeon, treating physician) and then
obtain these medical records. If any
records are unavailable, the Veteran
and his representative should so
advised in writing.
2. Obtain all medical records regarding
the Veteran's treatment at the VA
medical facilities in Shreveport and
Alexandria, Louisiana, for the period
from July 2004 to the present, and from
any other VA or non-VA medical provider
identified by him. If any records are
unavailable, the Veteran and his
representative should be so notified in
writing.
3. Schedule the Veteran for a VA
examination to determine the etiology
of any back disorder and left and right
foot disorders found to be present.
The claims folder should be available
to the examiner prior to entry of any
opinion. All indicated studies should
be completed and all clinical findings
reported in detail. A complete history
of the claimed disorders should be
obtained from the Veteran, to
particularly include any post-service
work-related foot or back injuries.
Based on a through review of the claims
folder, and the examination findings,
the examiner is requested to provide
address the following
a. The examiner should identify if
the Veteran has a diagnosed right
and left foot disorder, including
bilateral metatarsalgia, bilateral
plantar fasciitis, or another foot
disorder; or a back disorder,
including acute lumbosacral
strain, lumbago, osteoarthritis,
degenerative disc disease, or
another back disorder.
b. If right and left foot disorders
are diagnosed, the medical
specialist is requested to render
an opinion as to whether it is at
least as likely as not (i.e., to
at least a 50-50 degree of
probability) that any currently
diagnosed right and left foot
disorders were caused by military
service (including the findings
noted in the April and May 1971
and March 1972 service treatment
records), or whether such an
etiology or relationship is less
than unlikely (i.e., less than a
50- 50 probability).
c. The examiner further should
proffer an opinion, with
supporting analysis, as to the
likelihood that the Veteran's
diagnosed right and left foot
disorders were caused by or
aggravated by his service-
connected bilateral pes planus.
The degree of right and left foot
disorders that would not be
present but for the service-
connected bilateral pes planus
should be identified.
d. If a back disorder is diagnosed,
the medical specialist is
requested to render an opinion as
to whether it is at least as
likely as not (i.e., to at least a
50-50 degree of probability) that
any currently diagnosed back
disorder was caused by military
service (including the findings
noted in the April and May 1971
and March 1972 service treatment
records), or whether such an
etiology or relationship is less
than unlikely (i.e., less than a
50-50 probability).
e. The examiner further should
proffer an opinion, with
supporting analysis, as to the
likelihood that the Veteran's
diagnosed back disorder was caused
by or aggravated by his service-
connected bilateral pes planus.
The degree of back disorder that
would not be present but for the
service-connected bilateral pes
planus should be identified. The
examiner is particularly requested
to address the diagnosis rendered
by a private physician in May 1975
(to the effect that the Veteran's
back pain was probably associated
with the difficulty he had in
walking); and by a VA podiatrist
in October 2003 (to the effect
that the Veteran had back pain
with overlay onto foot problems).
f. To the extent possible, all
disability associated with any
intercurrent work-related back
injury should be distinguished
from the disability caused by the
service-connected bilateral pes
planus. If this is not possible,
the examiner should so state.
g. A rationale should be provided for
all opinions rendered. As noted,
the claims file must be made
available to the examiner in
conjunction with the examination,
and the examination report should
indicate if the Veteran's medical
records were reviewed prior to
responding to the questions.
NOTE: The term "at least as
likely as not" does not mean
merely within the realm of
medical possibility, but rather
that the weight of medical
evidence both for and against a
conclusion is so evenly divided
that it is as medically sound
to find in favor of causation
as it is to find against it.
4. The Veteran should be advised in
writing that it is his responsibility
to report for the VA examination, to
cooperate with the development of his
claims, and that the consequences for
failure to report for a VA examination
without good cause include denial of
the claims. 38 C.F.R. §§ 3.158, 3.655
(2009). In the event that the Veteran
does not report for any ordered
examination, documentation must be
obtained that shows that notice
scheduling the examination was sent to
his last known address prior to the
date of the examination. It should
also be indicated whether any notice
that was sent was returned as
undeliverable.
5. Thereafter, the RO/AMC should review
the examination report to ensure that
it is in complete compliance with this
remand. If not, the case should be
returned to the examiner if the
questions posed herein were not
answered.
6. The RO/AMC should then adjudicate the
claims of entitlement to service
connection for right and left foot
disorders and a back disorder on the
merits. If any benefit sought is not
granted, the Veteran and his
representative should be furnished with
a supplemental statement of the case
and afforded an opportunity to respond
before the file is returned to the
Board for further appellate
consideration.
The Board intimates no opinion as to the ultimate outcome of
this case. The appellant need take no action unless
otherwise notified.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
______________________________________________
Michael J. Skaltsounis
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs